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Davis v. Cox Communications California, LLC

United States District Court, S.D. California

April 26, 2017

JIMMIE L. DAVIS, individually and on behalf of others similarly situated, Plaintiff,



         On September 21, 2015, Plaintiff Jimmie L. Davis filed a class-action complaint against Defendant Cox Communications California, LLC (“Cox”) in San Diego Superior Court. (ECF No. 1-2.) Cox removed the case to federal court. (ECF No. 1.) The operative Complaint alleges: (1) unfair competition in violation of California Business & Professions Code §§ 17200 et seq.; (2) failure to pay overtime wages in violation of California Labor Code § 510; (3) failure to provide itemized wage and hour statements in violation of California Labor Code § 226; (4) failure to pay wages when due in violation of California Labor Code §§ 201-203; and (5) violations of the Private Attorney General's Act (“PAGA”) in violation of California Labor Code § 2698. (ECF No. 24.) Now pending before this Court is the parties' joint motion for preliminary approval of class action settlement (ECF No. 29 (“Joint Motion”)), which seeks an order conditionally certifying a proposed settlement class, preliminarily approving class action settlement, and setting a hearing for final approval of the settlement.


         The proposed settlement agreement (ECF No. 29-2 (“Settlement” or “Settlement Agreement”)) applies to 287 class members (“Class” or “Class Members”) defined as, “all non-exempt, non-field technical employees who worked for Cox in California from August 23, 2012 until January 20, 2017.” (Settlement ¶¶ 5, 17.) The parties agree that the Class shall be provisionally certified, and that, subject to the Court's approval, Blumenthal, Nordrehaug and Bhowmik will be appointed as Class Counsel. (Id. ¶ 6e.) Jimmie Davis will appointed Class Representative. (Id. ¶ 6f.)

         Cox agrees to provide a non-reversionary fund (“gross value fund”) of $275, 000, from which will be deducted any Court-approved attorney's fees (counsel will request 25% of the fund or $68, 750), costs (not exceeding $10, 000), enhancement award for Davis (counsel will request $5, 000), and administrative costs (estimated to be $10, 000). (Settlement ¶¶ 11-13.) The parties further agree that the PAGA award shall be $4, 000 and $3000 of the gross value fund shall be allocated to the state's 75% share for the payment to the Labor Workforce Development Agency (“LWDA”) to extinguish any PAGA Claims arising within the scope of the release. (Settlement ¶¶ 11, 13d.) Class members will receive a portion of the remaining net fund value (estimated to be at least $178, 250) based on the number of workweeks they worked during the class period. (Id. ¶¶ 14g, 15.)

         Once their portion of the net class fund is calculated, class members will be mailed a check and will have 180 days to cash the check. (Settlement ¶ 14g.) The Class Administrator will send out a reminder to class members to cash the check 150 days after mailing. (Id.) Any uncashed check amounts will be paid to the California Department of Labor Standards Enforcement Unpaid Wage Fund with an identification of the Settlement class member who failed to cash the check. (Id. ¶ 15c.) The amounts received shall be considered wages and are subject to legally required withholding. (Id. ¶ 15d.) Cox will pay employer-paid withholding, payroll taxes, and similar expenses outside the gross value fund. (Id.)

         Plaintiff will dismiss without prejudice the meal and rest period derivative claims asserted in the original complaint and agree that this Settlement is not based upon any allegations underlying those meal and rest period claims. (Settlement ¶¶ 4, 23.) Class members will release any claims for failure to pay the proper amount of overtime or derivative claims for penalties. (Id. ¶ 23.)

         The parties request that the Court appoint CPT Group as the Claims Administrator (“CPT”). Cox will provide CPT with the last known address of each Class Member, and CPT will mail notice to each Class Member. (Settlement ¶ 17.) Notice will include Cox's calculation of each Class Member's work weeks of employment (and will provide a mechanism for Class Members to challenge this calculation), as well as the resulting estimated settlement amount for each Class Member. (Id.)

         Class Members will be given the opportunity to object and/or opt out of the Settlement. Cox reserves the right of rescission if 10% or more Class Members opt out of the Settlement. (Settlement ¶ 22.)

         II. ANALYSIS

         A. Class Certification (for Settlement Purposes Only)

         Here, the Parties seek to certify a class for settlement purposes only. Federal Rule of Civil Procedure 23(a) provides that a class may be certified “only if (1) the class is so numerous that joinder of members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). In addition to meeting the Rule 23(a) requirements, a class action must fall into one of the categories laid out in Rule 23(b). Fed.R.Civ.P. 23(b). The parties seek to certify the class under Rule 23(b)(3). Both Rules 23(a) and 23(b) are satisfied in this case.

         1. Rule 23(a)

         a. Numerosity

         The numerosity requirement is generally satisfied when the class contains 40 or more members, a threshold exceeded in this case. Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); Cleano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007). The parties represent that there are 287 Class Members. (Settlement ¶ 17.) That number is large enough that individual joinder of all class members would be impracticable. Rule 23(a)(1) is therefore satisfied.

         b. Commonality

         The commonality requirement requires that there be “questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). Here, the class claims all stem from Defendant's alleged violation of California Labor Code overtime requirements. Because Class Members here have the same or similar allegations, there are common questions of law and fact and Rule 23(a)(2) is satisfied.

         c. Typicality

         In general, the claims of the representative parties “need not be substantially identical” to those of all absent class members and need only be “reasonably coextensive” in order to qualify as typical. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Here, the Named Plaintiff's claims that Defendant failed to properly pay him overtime pay are identical or nearly identical to those of the other Class Members. Rule 23(a)(3) is therefore satisfied.

         d. Adequacy of Representation

         For the class representative to adequately and fairly protect the interests of the class, two criteria must be satisfied. “First, the named representatives must appear able to prosecute the action vigorously through qualified counsel, and second, the representatives must not have antagonistic or conflicting interests with the unnamed members of the class.” Lerwill v. Inflight Motion Picture, Inc., 582 F.2d 507, 512 (9th Cir. 1978). Here, the Named Plaintiff has vigorously pursued the action thus far and appears capable of continuing to do so. (See Bhowmit Decl. ¶ 28, ECF No. 29-2.) Counsel appear qualified, competent, and experienced in class-action lawsuits. (Bhowmit Decl. ¶ 29, Ex. 2.) The Named Plaintiff also has no antagonistic or conflicting interests with the Class Members. Although he seeks an incentive award in addition to his award as a class member, this does not necessarily mean he has a conflicting interest with the remaining class members. See In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 943 (9th Cir. 2015) (“[I]ncentive awards that are intended to compensate class representatives for work undertaken on behalf of a class are fairly typical in class action cases” and “do not, by themselves, create an impermissible conflict between class members and their representatives[.]”). Rule 23(a)(4) thus appears to be satisfied.

         2. Rule 23(b)

         The parties seek to maintain their class action under Rule 23(b)(3). Under Rule 23(b)(3), “[p]laintiffs must also demonstrate that a class action is ‘superior to other available methods for fairly and efficiently adjudicating the controversy.'” Otsuka v, Polo Ralph Lauren Corp., 251 F.R.D. 439, 448 (N.D. Cal. 2008) (citing Fed.R.Civ.P. 23(b)(3)). “Where classwide litigation of common issues will reduce litigation costs and promote greater efficiency, a class action may be superior to other methods of litigation, ” and it is superior “if no ...

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